What is gained by imprisoning a man for debt? Nothing that I ever heard of. It is not required to deter him from being ruined again; he probably won't get the chance, and if he did the fact of having been sold up once is quite sufficient deterrent from wanting to be sold up again.
Will it deter others? People don't get ruined for the fun of the thing. It is a dreadful thing to be sold up; in itself that is quite enough. Then what good does imprisoning the poor devil do? It does none. It does harm, and nothing but harm. It hurts the debtor and prevents his recovering himself; it panders to the desire of society and of creditors for revenge. There is an idea abroad that when anything untoward happens somebody should be punished, and then society will have vindicated itself. But the duty of society is to prevent crime, not punish it, and it cannot whitewash itself in this way. It merely condemns itself more even than it condemns him it punishes.
Moreover, the ability of creditors to imprison debtors is misused in a way that is almost criminal. The creditor will imprison the debtor with the hope that the debtor's relatives and friends will subscribe to save him and them from this disgrace. That is to say, the law allows a creditor to put improper pressure on totally innocent people in order to get his claims satisfied. Think of the iniquity of a law like that!
And what are these claims? Are they just claims? They are legal claims, but are they just?
For the most part they are claims of money-lenders. The Courts act as collecting agencies to the most oppressive system of money-lending that can be imagined. Two and a half per-cent per month is not unusual.
Government has shown its recognition of this danger by creating Co-operative Credit Banks, which are a great boon. But it has not thought of revising its Civil Court procedure. As in most other matters, it recognises something wrong, but attributes it to the people, not to the Courts and the law; therefore it does nothing.
But at all events imprisonment for debt should be abolished. There were eight hundred unfortunate debtors imprisoned in Burma in 1910.
Do you wonder that the people dread and hate the Courts?
Civil law embraces a great variety of suits besides suits for money, and includes a great number of special laws. The harm that has been done by fossilising Hindu, Mohammedan, and Buddhist law and custom has been already mentioned; to enter further into these matters is unnecessary. Once it is clearly recognised that the law and the Courts require amendment, not in details but in fundamental principles, there will be many better critics than I am. For although I have been obliged to learn some law in order to do my work, I was never an apt student of it. Humanity and justice are the only studies I really care for. Law is mainly a denial of both. Therefore if the Government of India and the local officials will but give up thinking that where law and human nature disagree it is so much the worse for human nature, they will soon find out where the present laws are wrong. But before I close this chapter there is one further point I wish to mention, and that is the trial of Burmese divorce suits by our Courts. Now that is wrong, absolutely wrong, and indefensible in every way. The Courts are not concerned with divorce. It is by Burmese custom and common sense a purely village matter. Divorces can be given by the elders, and they alone should be allowed to pronounce them. For they are sensible men, and in such cases they act not as judges, but as neighbours. They will grant no divorce till they have exhausted all means of conciliation. They know the parties as no judge can know them; they know who is to blame, how he or she is to blame, how the difference can be adjusted. It is to their interest to smooth things down and prevent their getting worse. Theoretically the breakers of marriages, they are in fact the preservers of marriage. It is by their tact and common sense that couples are kept together, and that only when matters become impossible divorces are granted.
But a judge is different. He knows nothing, cares nothing, can do nothing but listen to the complaint and grant the divorce. It must legally be granted at the request of either party, remember. To allow a judge to try divorce cases is a violation of Burmese law and custom, and is another and deep injury to the village community. How and why it was ever allowed I don't know. I suppose no one ever thought about it. Divorces in England are granted by Courts according to English law, therefore in Burma divorces can be granted according to Burmese law. I suppose that was the argument—if ever there was any argument at all.